Arnie Lemaire is Behind Blazing Cat Fur?

The issue of blogger anonymity is a contentious one that is being closely watched by members of the bar.  Canada does have a more qualified understanding of the freedom of speech, and after the emergence of the responsible journalism defence in Quan v. Cusson and Grant v. Torstar Corp we’re likely to to see the courts enter this foray as well.

So what happens when a notoriously anonymous and irresponsible blogger is identified?  We may just find out with the recent revelation that the author behind Blazing Cat Fur is allegedly an individual named Arnie Lemaire.

The site is a case study of exactly what not to do with online political commentary, with plenty of potentially libelous statements and speculative conclusions. In fact the site seems to specifically seek to target individuals and comment on them personally.

The Limitations Act states,

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

Discovery

5. (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

[emphasis added]

Anonymity in this context is frequently used to shield the blogger from potential litigation by avoiding identification of authorship.  Although there are mechanisms to identify authorship, they can be tricky and are still developing.

With the revelation of authorship behind these statements, a new limitations period may have started for statements made on the site if relying on 5.(1)(b).  They may still have to rebut the presumption in 5(2),

Presumption
(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
[emphasis added]

Depending on the cause of action, the appropriate limitation might be found under the Libel and Slander Act,

Limitation of action

6. An action for a libel in a newspaper or in a broadcast shall be commenced within three months after the libel has come to the knowledge of the person defamed, but, where such an action is brought within that period, the action may include a claim for any other libel against the plaintiff by the defendant in the same newspaper or the same broadcasting station within a period of one year before the commencement of the action.
[emphasis added]

Alternatively, a plaintiff could try to rely on the special circumstances indicated in Mazzuca v. Silvercreek Pharmacy Ltd.,

[32]         Thus, as a general rule, amendments to pleadings which had the effect of relieving against a limitation period, were not allowed.  This did not mean, however, that in every case such amendments were to be denied.

[33]         The exception to the general rule, which contemplated the allowing of an amendment in a proper case notwithstanding the intervention of a limitation period, was expressly recognized by the Supreme Court of Canada in Basarsky v. Quinlan, supra, in which Hall J. observed at 385:

“The adjective ‘peculiar’ in the context of Lord Esher, M.R.’s judgment and at the date thereof may be equated with ‘special’ in current usage”.

This decision, and the undertaking of a special circumstances analysis, have been followed in numerous subsequent cases.  In some instances this has occurred in the context of the operation of particular limitation periods where special considerations may apply, or legislative regimes which expressly provide for the extension of time periods established by statute.  In other cases, the analysis of special circumstances has been undertaken when a change of parties is sought, as a discretionary matter, under the rules.

So will this unveiling lead to any litigation?  We’ll have to see, but it will be interesting to find out.

Arnie Lemaire of Blazing Cat Fur

Arnie Lemaire of Blazing Cat Fur with his camera. He likes to take photos of random people and place them on his site, so here is the favour returned.

9 Comments on "Arnie Lemaire is Behind Blazing Cat Fur?"

  1. Arnie was”outed” well over a year ago as a quick look at the date on the post you link to would have revealed.

  2. Recent revelation? It’s more than a year old!

  3. It’s recent for the purposes of litigation, i.e. claims that would have exceeded the two-year period (or 90 days, as it may be). Legal claims through the court system do move slowly. It’s also of interest in light of the recent SCC cases mentioned above, and potentially greater scrutiny of online communications. It’s the limitations period and blogger anonymity that is the focus of the post, not the individual involved.

    However, a perfect example of the irresponsibility of this individual is his presentation today of my involvement with a protest that I had absolutely nothing to do with. I don’t think I’ve even visited that site in the past year and a half, but this revelation was brought to my attention just today.

    I suspect in the long-term we will see more litigation generally, and identification of a potential defendant may assist plaintiffs in being willing to come forward with such claims. I also predict a general trend of the courts to try to reign in some of the online commentary, and establish some semblance of responsible communication.

  4. “I also predict a general trend of the courts to try to reign in some of the online commentary, and establish some semblance of responsible communication.”

    I predict the opposite.

  5. Really KC?
    To date we’ve barely seen any restriction of online speech at all, and yet we’re seeing more and more problems arise as a result.

    See my recent post about CraigsList in the criminal context, for example. The climatologist case is yet another example of problems arising, this one in the realm of defamation. There does seem to be an increase, especially compared to a few years ago.

    The only direction the courts could go is increase their scrutiny, and it would only make sense to start with the most obnoxious and offensive.

    The flip side of this is the pending case at SCOTUS in the US in John Doe No. 1, et al., v. Reed, et al.

    Lyle Dennison provides a background for this case,

    The Supreme Court has sometimes found it necessary to provide anonymity for political activists. The scope of that protection will be tested anew as the Court examines a plea by signers of a petition supporting a ballot measure that they, too, may need to keep their identities secret in order to avoid retaliation, perhaps even a violent response from their opposition. The new case arises in the volatile contact of same-sex marriage.

  6. I think if a man wants to hide his face, his wish should be respected, especially since the result is such an improvement.
    Or are you against face-covering, eh?
    [Somehow, I also ended up with the original, but I won’t post it]

  7. I think I read somewhere (one of Richard Warman’s statements of claim, perhaps) that there is a precedent in Canadian law for internet postings to be considered more like broadcasts than publication so that in that a post is considered to be continually rebroadcast until it is taken down. The outcome of this is that where if a newspaper publishes a libel on January 3 you generally have to act within three months of publication but if a libellous post is made on January 3 but isn’t removed until June 5 you have until three months after the “broadcast” ceased transmission.

    Is this correct?

    Given search engines something that was first posted 3 years ago can appear at the top of your google search as if it was first broadcast today.

  8. If the Blazing Cat Fur site is violating your legal rights or Canadian law you can complain to Google here:

    http://www.google.com/support/websearch/bin/request.py?hl=en&contact_type=legal_removals

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